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1 - 10 of 12 (0.61 seconds)Florence Amelia Thompson vs George S. Thompson on 29 November, 1911
It was held in Thompson v. Thompson (1858) 1 S. & T. 231 that to constitute wilful desertion on the part of the husband his absence and the cessation of cohabitation must be in spite of the wish of the wife, and that she must not be a consenting, party to it. In a later case, Fitzgerald v. Fitzgerald (1869) L.R. 1 P. & M. 694, it was observed by Lord Penzance at p. 698 that no one could desert who did not actively and wilfully bring to an end an existing state of cohabitation. According to him " desertion means abandonment, and implies an active withdrawal from a cohabitation that exists".
Savitribai Widow Of Dhakji Balcrustna vs Luximibai Widow Of Ganoba Ananta, And ... on 1 May, 1878
15. The question still remains whether the plaintiff is entitled to separate maintenance. The burden lies upon her to show the special circumstances which entitle her to a separate maintenance. Under the Hindu law the right of a wife to maintenance is a matter of personal obligation on the husband. It rests on the relations arising from the marriage, and is not dependent on or qualified by a reference to the possession of any property by the husband. The first duty of a Hindu wife, however, is to submit to her husband's authority and stay under his roof, and not to quit his house without any adequate excuse or justifying cause. If, however, the husband by reason of his misconduct, or cruelty in the sense in which that term is used by the English Matrimonial Courts, or by his refusal to maintain her, or for any other justifying cause, makes it compulsory or necessary for her to live apart from him, he must be deemed to have deserted her, and she will be entitled to separate maintenance and residence. Is the desertion of the plaintiff by her husband following upon a denial of the marriage a justifying cause for allowing her separate maintenance ? The texts collected in Savitribai v. Luximibai and Sadasiv Ganoba (1878) I.L.R. 2 Bony 573, 597-98 seem to show that a husband who deserts a " faultless wife " or a wife "obedient to his commands" is bound to maintain her even though living apart. A wife forsaken without fault may, according to Yajnavalkya, even compel her husband to pay a third of his wealth, or if poor, to provide maintenance for her: see Colebrooke's Digest of Hindu Law, Vol. 2, Book IV, 72. This is, however, a penal provision, and has been rarely enforced by the Courts.
Sidlingapa Son Of Basapa vs Sidava Kom Sidlingapa on 1 May, 1878
See Sidlingapa v. Sidava kom Sidlingapa (1878) I.L.R. 2 Bom. 634 in which it was held that a wife could claim separate maintenance if the husband refused to maintain her in his house.
Tekait Mon Mohini Jemadai vs Basanta Kumar Singh on 20 March, 1901
Counsel relied on Tekait Man Mohini Jemadi v. Basanta Kumar Singh (1901) I.L.R. 28 Cal. 751, in which it was held that it was not only a duty imposed upon a Hindu wife but a rule of the Hindu law that she must remain with her husband wherever he may choose to reside. That rule was considered in the case, because of an antenuptial agreement one part of the husband that he would never and under no condition be at liberty to remove his wife from her mother's house, and would always carry out the mother's orders, and it was held that the agreement was not only void as being against the rule of Hindu law, but void on the ground of public policy. Such a rule cannot be imposed upon a wife who has been abandoned by her husband. Reliance was placed in that case upon a passage from Mayne's Hindu Law, which in the 9th edn. is at p. 651, and runs as follows:-
Pandit Someshwar Dutt vs Pandit Tirbhawan Dutt on 21 March, 1934
In Someshwar Dutt v. Tirbhawan Dutt (1934) L.R. 611. A. 224 : s.c. 36 Bom. L.R. 652, the Privy Council have expressed their disinclination to stress the structure of pleadings too strictly, if fair notice of the plaintiff's case has been given and issue joined on an inquiry but faintly adumbrated. There is no specific issue in this case as to desertion, but the question has to be considered in determining the issue whether the plaintiff is entitled to separate maintenance. It was argued by counsel for the defendant that the plaintiff's proper remedy on the alleged desertion was to have sued the defendant for restitution of conjugal rights. Whether she should or should not have done so is not a matter which is for me to consider. The most important question is whether she is entitled to separate maintenance, and before discussing the law on the subject I will deal briefly with the facts.
Kandasami Pillai vs Murugammal on 3 October, 1895
It may, however, be pointed out that even a 'decree for maintenance may be set aside on the ground of the wife's subsequent misconduct: see Kandasami Pillai v. Murugammal (1895) I.L.R. 19 Mad. 6. An unchaste wife is not entitled to anything but a " bare " or " starving " maintenance, and even that may be forfeited if she continues or persists in her unchaste life.
Krishna Aiyar vs Balammal on 6 May, 1910
19. I will now deal with the plaintiff's claim for ornaments and payment of her debts. Defendant's counsel argued that if these antenuptial agreements were in fact made, they could not be enforced, because the agreements, viz., to keep the plaintiff in Bombay, to provide her with a separate house and car, to give her ornaments and pay her debts, all hang together, and if the agreement to stay in Bombay could not be enforced on the ground that it was against Hindu law, the other agreements could not be enforced too. I do not agree with the contention that all these agreements must hang or fall together. The agreement to live in Bombay stands apart from the agreement to give her ornaments and pay off her debts, though made at the same time. I need not consider the promise to provide her with a house and a car, because no relief is claimed on account of the same. It has been held that an antenuptial agreement that the married parties shall not live together or shall live separately is void both under the English and under the Hindu law: see Krishna Aiyar v. Balammal (1910) I.L.R. 34 Mad. 398, 401. It is also opposed to public policy.
Ekradeshwari Bahuasin Saheba vs Homeshwar Sing on 5 March, 1929
22. The plaintiff is, therefore, entitled to the declaration she seeks for, and to an order for separate maintenance and residence, but not for any order in respect of the ornaments and the debts. No exact rule can be laid down as to the amount claimable for maintenance. Every case has to be judged on its own facts. In determining the amount, however, the Court usually takes into consideration the reasonable wants of the plaintiff, her position in life, her husband's means and income, as well as the mode of the former life of herself and her husband. She can claim maintenance even when she has property of her own, though that fact is also to be taken into account in determining the quantum. The law on the subject was stated by the Privy Council in Ekradeshwari Bahuasin v. Homeshwar Singh (1929) I.L.R. 8 Pat. 840 : s.c. 31 Bom. L.R. 816, P.C. as follows (p. 845) :-
Bai Jivi vs Narsing Lalbhai on 14 October, 1926
18. I might here refer to the case of Bai Jivi v. Narsing (1926) 29 Bom. L.R. 332 in which it was held that a husband could not get a decree straightaway for restitution of conjugal rights in a suit which was filed after he had deserted his wife, and after she had obtained an order for maintenance under Section 488 of the Criminal Procedure Code, without hearing the wife in her defence, and without investigating the conduct of all the parties, as in the opinion of the Court the suit might well have been merely a device to avoid the husband's just obligation to provide for his wife's maintenance. The conduct of the parties is certainly a matter for consideration, and considering the defendant's conduct towards his wife after May 12, it appears to me that the fault for the desertion and consequent separation, lies really at his door. In my opinion the plaintiff is entitled to separate maintenance and residence.